02a60007
04-06-2006
Agency.
Aurel Jon Wisnieski v. FDIC
02A60007
April 6, 2006
.
Aurel Jon Wisnieski
Grievant,
v.
Martin J. Gruenberg,
Acting Chairman,
Federal Deposit Insurance Corporation,
Agency.
Appeal No. 02A60007
Grievance No. FMCS No. 04-50029
DECISION
The grievant timely initiated an appeal from an Arbitrator's decision
concerning his grievance alleging unlawful employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.401(d) and .405. For the following reasons, the
Commission affirms the findings of the Arbitrator.
The grievant was employed as a Grade 15 Senior Information Specialist
in the Division of Insurance and Research (DIR). The record reflects
that the union and the agency negotiated a Compensation Agreement
for a Corporate Success Award (CSA) program for the years 2003-2005.
The agreement reflects that the CSA was designed to recognize an
employee's individual initiative, exceptional effort and/or achievements
reflecting important contributions to the agency. During 2003,
the FDIC Chairman decided, pursuant to the agreement with the union,
that one-third of the recipients of the award would be bargaining unit
employees. When grievant did not receive an award in 2003, he filed a
grievance regarding his non-selection for an award. The matter went to
arbitration and a hearing was held where grievant raised claims of age
discrimination. Thereafter, the Arbitrator issued a decision finding
there was no discrimination and denying the grievance. Specifically,
the Arbitrator found the distribution process used by the agency to be
�fair and equitable.� The Arbitrator noted the grade disparity between
grievant and the employees he was comparing himself to, and found no
discrimination in the agency's decision not to give grievant an award.
With respect to grievant's individual disparate treatment claim, although
the initial inquiry in a discrimination case usually focuses on whether
the grievant has established a prima facie case, following this order
of analysis is unnecessary when the agency has articulated a legitimate,
nondiscriminatory reason for its actions. See Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In such cases,
the inquiry shifts from whether the grievant has established a prima
facie case to whether she has demonstrated by a preponderance of the
evidence that the agency's reasons for its actions merely were a pretext
for discrimination. Id.; see also United States Postal Service Board
of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
The Commission notes that grievant compared himself to employees who were
not similarly situated to himself � they were in different positions and
at different pay levels. As such he cannot establish a prima facie case
of age discrimination. However, even assuming he established a prima
facie case of discrimination, the agency explained that the grievant
was not selected for a CSA because, although his work was good, his
contributions to the agency did not justify an award. It is noted that
while grievant's supervisor did nominate him for the award, he submitted
his nominees in ranked order and grievant was ranked third of three.
As only one-third of the recipients of the awards were to be bargaining
unit employees, grievant did not make the cut-off to receive an award.
Grievant did not produce evidence to establish that his work was plainly
superior to those who did receive awards. Moreover, to the extent that
grievant attempted to use statistical evidence to prove pretext, the
Commission finds that the generalized statistics presented, without more,
were insufficient to rebut the agency's articulated non-discriminatory
reason for not selecting this particular grievant for the award.
Therefore, complainant has not shown, by a preponderance of evidence,
that the agency's articulated reasons for the decisions made were a
pretext for discrimination.
The Commission notes that grievant, at least on appeal, also attempted to
raise a claim of disparate impact. In general, to establish a prima facie
case of disparate impact, grievant must show that an agency practice or
policy, while neutral on its face, disproportionately impacted members
of the protected class. This is demonstrated through the presentation
of statistical evidence that establishes a statistical disparity that
is linked to the challenged practice or policy. Watson v. Fort Worth
Bank and Trust, 487 U.S. 977, 994 (1988) (complainant must present
�statistical evidence of a kind and degree sufficient to show that the
practice in question has caused the exclusion�). Specifically, grievant
must: (1) identify the specific practice or practices challenged; (2)
show statistical disparities; and (3) show that the disparity is linked
to the challenged practice or policy. Id. The burden is on grievant
to show that �the facially neutral standard in question affects those
individuals [within the protected group] in a significantly discriminatory
pattern.� Dothard v. Rawlinson, 433 U.S. 321, 329 (1977); see also Gaines
v. Department of the Navy, EEOC Petition No. 03990119 (August 31, 2000).
After careful consideration of the entire record, the Commission
finds that grievant, who carries the initial burden of proof, has
failed to provide sufficient evidence to establish a prima facie
case of disparate impact in this matter. The statistics provided
by grievant were generalized, vague and insufficient to show that an
identified practice of the agency caused the exclusion of members of
his protected class. Basically, the grievant argued that �47 percent
of DIR bargaining unit employees under the age of forty received a CSA
while only 27 percent of bargaining unit employees over the age of
forty received a CSA.� Appellant's Brief in Support of His Appeal,
p. 2. Grievant, however, did not identify the particular aspect(s)
of the CSA program allegedly responsible for any observed statistical
disparity as required in the first and third steps of the prima facie
case of disparate impact. Simply identifying the CSA program, without
more specificity, does not meet grievant's prima facie burden. Moreover,
the gross statistics offered by grievant are too broad to draw appropriate
statistical conclusions that there was a relevant statistical disparity
in this case. Grievant's disparate impact case rests almost exclusively
on one statistical chart (Union Exhibit 4) submitted by the union,
with limited testimony explaining the chart. However, the proffered
chart fails to provide adequate evidence of a statistical disparity.
For example, the chart presented does not show what percentage of those
bargaining unit employees who did not receive a CSA were even eligible
for the award.<1> It is also noted that the chart provides statistics
only for bargaining unit employees, while two-thirds of the recipients
of CSAs were non-bargaining unit employees. Information about these
employees may be necessary to draw any statistically valid conclusions
about age being a factor in the awards process.
Therefore, after a careful review of the record, including grievant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the Arbitrator's
decision finding no discrimination in this matter.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the grievant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 6, 2006
__________________
Date
1 The program required employees to have received at least a �Meets
Expectations� rating on their performance appraisal to be eligible for
a CSA.